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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60422
_______________
HANY E. WILLIAM,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
July 17, 2000
Before DAVIS, SMITH, and DENNIS,
tion is not unreasonable, we deny the petition
Circuit Judges.
for review and affirm the order of the BIA.
JERRY E. SMITH, Circuit Judge:
I.
William, an Egyptian citizen, entered the
Hany William petitions for review of an
United States on a student visa in 1992. In
order of the Board of Immigration Appeals
1994, he was issued an order to show cause
("BIA") dismissing, as untimely, his motion to
why he should not be deported for failing to
reopen deportation proceedings. Concluding
maintain the conditions of his non-immigrant
that the interpretation by the Immigration and
status. At the administrative hearing, he con-
Naturalization Service ("INS") of its regula-
ceded his deportability but requested asylum.

An immigration judge denied his application
II.
for relief and ordered deportation. The Board
INS regulations governing motions to re-
of Immigration Appeals ("BIA") affirmed, dis-
open provide, in pertinent part, that "a party
missing William's direct appeal on Septem-
may file only one motion to reopen . . . and
ber 24, 1997.
that motion must be filed no later than 90 days
after the date on which the final administrative
William filed a motion to reconsider on Oc-
decision was rendered in the proceeding
tober 22, 1997, requesting withholding of de-
sought to be reopened." 8 C.F.R. § 3.2(c)(2).
portation based on his change in marital status
William's petition for review presents an issue
and his wife's eligibility for citizenship. The
of first impression: whether the decision in
BIA construed his request as both a motion to
William's original appeal to the BIA, as distin-
reconsider its dismissal of his appeal and a
guished from the subsequent denial of his mo-
motion to reopen to allow him to apply for ad-
tion to reconsider, was "the final administra-
justment of status based on the new fact of his
tive decision . . . in the proceeding to be re-
marriage to a lawful permanent resident.1 The
opened." If the dismissal of his original appeal
BIA denied the motion on April 30, 1998.
qualifies, then his motion to reopen was un-
timely. But if the denial of his motion to re-
William filed a motion to reopen on July 28,
consider is the final decision under § 3.2(c)(2),
1998, attaching his marriage certificate and
the motion to reopen was timely.
noting that his wife had completed the natural-
ization interview and tests and would be sworn
William argues that under Stone v. INS, 514
in as a citizen in a few weeks. He requested
U.S. 386 (1995), the denial of a motion to re-
permission to adjust his status once his wife
consider is a final order of deportation and that
was sworn in.
the denial of a motion to reconsider is a final
administrative decision from which the ninety-
William submitted that his motion to reopen
day clock should start running. Thus, he con-
was timely because it was filed within ninety
cludes that the BIA's construction of the
days of the denial of his motion to reconsider.
regulation is inconsistent with its plain mean-
The BIA disagreed, dismissing his motion to
ing and therefore is not entitled to deference.
reopen as untimely and concluding that it
should have been filed within ninety days of
The INS responds by also citing Stone, in
the dismissal of his direct appeal.
which the Court decided whether the filing of
a motion to reconsider or reopen tolls the time
during which judicial review of the underlying
deportation order may be sought. The Court
held that an order of deportation is final, that
1 This ruling motivated the INS's argument that
a denial of a motion to reconsider is a second
because the current motion was William's second
final order, and that the time limits for seeking
motion to reopen, he was foreclosed from making
judicial review of a final order apply separately
that motion under 8 C.F.R. § 3.2(c)(2)'s require-
to each final order. See id. at 395.
ment that he could file only one motion to reopen.
But because the BIA did not address this argument
in its decision, and because the INS does not
Thus, the INS argues that under Stone,
reassert that argument on appeal, we do not con-
both the denial of the motion to reconsider and
sider it.
2

the dismissal of the appeal of the deportation
duce.
order should be considered "final administra-
tive decisions" for purposes of § 3.2(c)(2).
Thus, while the regulation's use of "final
The INS reasons further that because Wil-
administrative decision" is facially unambigu-
liam's motion to reopen should relate to "the
ous, it invites, in the context of the next
proceeding to be reopened," it is the underly-
phrase, "rendered in the proceeding sought to
ing deportation decision, and not the denial of
be reopened," at least two reasonable interpre-
the motion to reconsider, that is being chal-
tations. Therefore, the provision is, at most,
lenged. This is so because William seeks to
ambiguous as to the question presented in this
introduce new evidence that he contends will
appeal, so we defer to the INS's reasonable in-
affect his deportationSSi.e., that his wife is go-
terpretation of its own regulation. See Ghas-
ing to become a citizen.
san v. INS, 972 F.2d 631, 637 (5th Cir. 1992).
This evidence could not be introduced in a
William avers that we should not defer, be-
proceeding for a motion to reconsider, the INS
cause the INS's interpretation is plainly un-
notes, because that type of motion challenges
reasonable. This is so, he asserts, because the
only the legal analysis employed by the immi-
term "final" can only mean the "last" adminis-
gration judge. The deportation proceeding is
trative decision in his case.
the proper forum for this new evidence, be-
cause there the immigration judge can take
Although William's construction is not un-
into account any additional factors supporting
reasonable, neither is the INS's, because "final
discretionary relief from deportation. That is
administrative decision" refers to "the pro-
to say, because an alien who seeks to intro-
ceeding sought to be reopened." It is possible
duce new evidence can reopen only a proceed-
that, as William suggests, this phrase refers to
ing that once was open for the receipt of evi-
the broader deportation process, but we can-
dence, the motion to reopen must look back to
not say that the INS's determination that the
an evidentiary proceeding rather than to the
phrase refers to the particular stage of the
denial of reconsideration.
process sought to be reopened is "plainly
erroneous or inconsistent with the regulation."
William tries to refute this construction by
Thomas Jefferson Univ. v. Shalala, 512 U.S.
arguing that he seeks to reopen all deportation
504, 512 (1994).
"proceedings" related to his case, which there-
fore would include both the original deporta-
Accordingly, the petition for review is
tion decision and the denial of his motion to
DENIED, and the order of the BIA is AF-
reconsider. Although this is not an implausible
FIRMED.
reading of the statute, the better interpretation
is that the language of § 3.2(c)(2) is not so
broad and, instead, refers only to a single "pro-
ceeding" that a party may seek to reopen, and,
again, the government reasonably argues that
the denial of a motion to reconsider cannot be
"reopened" where it was never open to the
type of new evidence William seeks to intro-
3